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1 - 10 of 16 (0.24 seconds)The Negotiable Instruments Act, 1881
Section 139 in The Negotiable Instruments Act, 1881 [Entire Act]
C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007
15. The maintainability of the present case having been established, let me now
deal with the contentions raised by counsel for the accused to see whether accused
has placed enough and cogent material before this court to rebut the said statutory
presumption which arose in favour of the complainant. Section 118 of the NI Act
inter alia provides that it shall be presumed, until the contrary is proved, that every
negotiable instrument was made or drawn for consideration. Section 139 of the NI
CC No. 46606/16 (old No. 251/15) page no. 8 /13
Act stipulates that unless the contrary is proved, it shall be presumed, that the holder
of the cheque received the cheque, for the discharge of, whole or part of any debt or
liability. The said presumptions are rebuttable in nature. In the present case since the
accused has not only admitted issuing the cheque in question to the complainant but
also her signature on the cheque in question, the presumption under section 139 of
the Negotiable Instrument Act would operate. However, the section merely raises a
presumption, and not the existence per-se of a legally recoverable debt. The accused
has denied receiving any legal notice from the complainant, although the statutory
presumption of delivery of legal notice is in favour of the complainant, in view of the
observation in C.C. Alavi Haji v. P. Mohammad (2007) 6 SCC 555. The Hon'ble
Apex court, in the present case held that it is no longer pre requisite that service of
legal notice has to be proved. Even if the service of legal notice is not proved, then
receipt of the summons on the complaint is sufficient to raise the cause of action U/s
138 NI Act in favour of the complainant.
The Code of Criminal Procedure, 1973
I.C.D.S. Ltd vs Beena Shabeer & Anr on 12 August, 2002
18. Thus, in view of the above testimony of the accused there remains no doubt
that the accused had issued the cheque in question to the complainant to discharge the
liability against the loan of Rs.2,00,000/- advanced by the complainant. The only
defence taken by the accused in the present case is that the cheque in question was
issued as security against the loan of Rs.2,00,000/- taken by the husband of the
accused and that she herself is not liable for the cheque in question. However this
submission of the accused does not hold good by reason of the fact that Section 138
CC No. 46606/16 (old No. 251/15) page no. 10 /13
of the NI Act provides for issuance of a cheque to another person towards the
discharge in whole or in part of any liability. The Hon'ble Apex Court in I.C.D.S.
Ltd v. Beena Shabeer & Anr (AIR 2002 SC3014) was pleased to observe as under: